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[2017] ZALCJHB 402
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Mngomezulu and Another v Mulima NO and Others (JR2744/12) [2017] ZALCJHB 402 (7 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JR 2744/12
In
the matter between
STEPHEN
MNGOMEZULU AND OTHER
Applicant
and
DENGA
MULIMA
N.O
First
Respondent
SAFETY
AND SECURITY SECTORAL BARGAINING
Second Respondent
COUNCIL
SOUTH
AFRICAN POLICE SERVICES
Third
Respondent
Heard: 19 July 2017
Delivered: 7 November
2017
Summary: Condonation
application: The Applicants filed their review application 3 years
and four months late. Relied, among others,
on that they waited for
their pension payouts. The Applicants however still filed the review
application 10 months after receiving
pension payouts. The delay is
inordinately long and reasons for the delay superficial and
unconvincing. Condonation application
dismissed.
JUDGMENT
MOLEBALOA
AJ
Introduction
[1]
This is an
application for the condonation of the late filing of the review
application. The application is opposed.
Background
facts
[2]
The
Applicants are former members of the South African Police Services
(SAPS). They were charged and dismissed for misconduct. It
was
alleged that they apprehended suspects in the act of crime, seized
their property and demanded money from them to release the
seized
property.
[3]
Aggrieved
by the outcome of the disciplinary hearing, the Applicants, assisted
by their union POPCRU, referred to the Second Respondent
a dispute of
unfair dismissal. The dispute was arbitrated by the First Respondent.
On 15 May 2009 the First Respondent issued an
award confirming the
Applicants’ dismissal as fair. POPCRU received the award on 19
May 2009.
[4]
Applicants
requested Mr. Mofokeng, a POPCRU shop steward who represented them at
the arbitration hearing, to review and set aside
the award. The
request was elevated to POPCRU’s Head Office. By September
2009, the Head Office had not as yet decided whether
or not it will
launch the review application. Mofokeng then advised the Applicants
to save money to launch the review application
by themselves.
[5]
In
September 2010 the Applicants were informed that the head office
declined their request to review the First Respondent’s
award.
Since the Applicants had no income they waited for their pension
money payout to instruct lawyers to launch the review application.
The payout delayed. They were then advised of a legal practitioner in
Pretoria that can assist in the release of their pension
monies. On
03 December 2010 they consulted the legal practitioner. They however
only received their pension monies in January 2012.
[6]
The review
application was filed on 26 November 2012 with condonation
application.
The condonation
application
[7]
The review
application was launched three years and four months late. The
Applicants’ explanation for the delay is three pronged:
POPCRU’s delay in responding to their request to review the
award; their financial constraints and the Third Respondent’s
delay in releasing their pension monies.
Evaluation
[8]
The
principle relating to a condonation application is trite.
[9]
In
Melane
v Santam Insurance Co Ltd
[1]
it was held that
“
in deciding whether sufficient
cause has been shown, the basic principle is that the Court has a
discretion, to be exercised judicially
upon a consideration of all
the facts, and is in essence it is a matter of fairness for both
sides. Among the facts usually relevant
are the degree of lateness,
the reasons for the lateness; the prospects of success and the
importance of the case”.
[10]
The
constitutional court in the matter of
eThekwini
Municipality and Ingonyama Trust
[2]
said the following:
“
As
stated earlier, two factors assume importance in determining whether
condonation should be granted in this case. They are: the
explanation
must cover the entire period of delay. And, what is more, the
explanation given must be reasonable. The explanation
given by the
applicant falls for short of these requirements. Her explanation for
the inordinate delay is superficial and unconvincing.”
[11]
In the case
of
Uitenhage
Transitional Local Council v South African Revenue Service
[3]
it was held as follows:
“
One would have hoped that the
many admonitions concerning what is required of an applicant in a
condonation application would be
trite knowledge among practitioners
who are entrusted with the preparation of appeals to this Court:
condonation is not to be had
merely for the asking; a full, detailed
and accurate account of the causes of the delay and their effects
must be furnished so
as to enable the Court to understand clearly the
reasons and to assess the responsibility. It must be obvious that, if
the non-compliance
is time-related then the date, duration and extent
of any obstacle on which reliance is placed must be spelled out”.
[12]
The
matrix of the Applicants’ condonation application which is
approximately 3 years and four month’s days is that their
representatives, POPCRU, delayed in considering their request for
review. In the case of
National
Union of Metal Workers vs Kroon Gietary and Staal
[4]
the
court refused a condonation application wherein the deponent
attributed the delay to his representative. The court quoted in
approval the case of
Regal
v African Superstate (Pty) Ltd
[5]
where
the court held that there is a limit beyond which a litigant cannot
escape the results of his attorney’s lack of diligence
or the
insufficiency of the explanation tendered. A litigant is not entitled
to hand over his matter to his attorney and wash his
hands of it.
[13]
Even
in the matter
in
casu
I am reluctant to allow the Applicants to attribute the delay to
their representatives. They were advised in September 2009 by
Mofokeng to save money to review the award. Subsequent to the advise
by Mofokeng, there was no activity until September 2010 when
the
Applicants were informed that the head office declined their request
to launch the review application. No explanation was provided
for the
lull period. No follow-ups with the union were done. Clearly the
Applicants handed over their matter to POPCRU and washed
their hands
of it.
[14]
A
further explanation for the delay was that the Applicants waited for
pension payouts to brief a lawyer. The explanation did not
assist the
Applicants’ case either. Actually it aggravated it. Applicants
received their pension payouts in January 2012.
They however only
filed their review application in November 2012, about ten months
after receiving their pension payouts. The
explanation is thus
disingenuous.
[15]
The
Applicants were court orderlies transporting, as part of their job,
accused or prisoners between police cells and court. I asked
Mr.
Teffo if the Applicants were not aware of Legal Aid services since
they were court orderlies. No clear answer was provided.
[16]
The
delay even in the matter in
casu
is
inordinately long and the explanation provided is superficial and
unconvincing. I was tempted to look into the Applicants’
prospects of success in the review application, but the explanation
of the delay is so weak that no measure of prospects of success
can
rescue this application. The degree is also so inordinately long that
no tons of sympathy can salvage this application.
[17]
In
High
Tech Transformers (Pty) Ltd v Lombard the Honourable
[6]
the court held as follows about the unsatisfactory explanation:
“…
An
unsatisfactory and unacceptable explanation for any of the periods of
delay will normally exclude the grant of condonation, no
matter what
the prospects of success on the merits…”
[18]
This principle was stated by Myburgh, JP in
NUM
v Council for Mineral Technology
[7]
as follows:
“
There is a further principle
which is applied and that is without a reasonable and acceptable
explanation for the delay, the prospects
of success are immaterial,
and without prospects of success, no matter how good the explanation
for delay, an application for condonation
should be refused”.
[19]
This principle was followed in the matter of
Moila
v Shai and others
[8]
in which the then Honourable Judge President Zondo held:
“
Indeed, it is clear from
PE
Bosman Transport Wks Com v Piet Bosman Transport
1980(4) SA 794 (4) at 799 D that in a case such as this one, it is
not necessary to consider the prospects of success and that
condonation could be refused no matter how strong the prospects of
success are in a case such as the present one.”
[20]
The Third Respondent is entitled to finality in this matter. In
Van
Wyk v Unitas Hospital and another
[9]
it was held that:
“
A litigant is entitled to have
closure on litigation. The principle of finality in litigation is
intended to allow parties to get
on with their lives. After an
inordinate delay a litigant is entitled to assume that the losing
party has accepted the finality
of the order and does not intend to
pursue the matter any further. To grant condonation after such an
inordinate delay and in the
absence of a reasonable explanation would
undermine the principle of finality and cannot be in the interest of
justice.”
[21]
As fully enunciated in the above authorities, where the explanation
is not compelling, the prospects of success would not assist.
This is
one of those cases. The Applicants have therefore failed to show good
cause why the late filing of the review application
should be
condoned.
The
principle of finality would be undermined if condonation is granted
and that cannot be in the interest of justice.
[22]
Accordingly,
I issue the following order:
Order
1.
Condonation application is refused.
2.
There is no order as to costs.
___________________________________
M
olebaloa
MS
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicants: Advocate MD Teffo.
Instructed
by: Phaladi
Attorneys.
For
the Respondent: Advocate S Tilly.
Instructed
by: H
Maponya of State Attorney.
[1]
1962 (4) SA 531
(A) at para. 532.
[2]
2014 (3) SA 240
(CC) at para 28.
[3]
2004 (1) SA 292
(SCA) para. 6.
[4]
(JS 485/10) 2015
ZALCJHB 158 (13 May 2015).
[5]
1926 (3) SA 18
AD.
[6]
(2012) 33 ILJ 919 (LC) at page 919.
[7]
(1999) 3 BLLR 209
(LAC) at 211 G-H at
para 25.
[8]
(2007) 28 ILJ 1028 (LAC) at para. 36.
[9]
[2007] ZACC 24
;
2008 (4) BCLR 442
(CC) at para. 31.